G.R. No. L-6476. November 19, 1955
FRANCISCO DE BORJA AS EXECUTOR OF THE ESTATE OF THE DECEASED JOSEFA TANGCO, PETITIONER, VS. BIENVENIDO A. TAN, AS JUDGE OF THE COURT OF FIRST INSTANCE OF RIZAL, AND JOSE DE BORJ…
MONTEMAYOR, J.:
to approve and admit the record on appeal filed before him and to give due
course to the appeal. The facts involved as gathered from the record may be
briefly stated as follows. On October 25, 1940, petitioner Francisco de Borja
filed a petition in the lower court for the probate of the Last Will and
Testament of his deceased wife Josef a Tangco. The will was probated on April 2,
1941, and named Francisco de Borja as executor thereof. One of the heirs who is
now one of the respondents herein Jose de Borja appealed the case to the Court
of Appeals but later his motion for dismissal of the appeal was granted. All the
records of the case were destroyed or lost during the last Pacific war but were
on January 1, 1946, reconstituted. On March 26 of that year Francisco de Borja
qualified as executor and administrator.
Due to the physical inability of Francisco de Borja to fully administer the
estate he being quite weak and unable to see, on August 25, 1951, on petition of
Matilde de Borja, one of the heirs, the lower court appointed Crisanto de Borja,
another heir, as co-administrator, Crisanto qualified as co-administrator on
August 29, 1951.
On April 9, 1952, the trial court according to petitioner, without petition
of or notice to anyone appointed respondent Jose de Borja as co-administrator,
this, after holding in abeyance consideration of Francisco de Borja’s amended
account dated March 25, 1952. Francisco, Matilde and Crisanto moved for
reconsideration of the appointment of Jose de Borja but by order of August 14,
1952, respondent Judge indirectly denied the motion for reconsideration, and
acting upon an alleged ex-parte petition of the heirs Jose, Crisanto,
Cayetano and Matilde, all surnamed De Borja, revoked the appointment of Crisanto
as co-administrator and directed administrator Jose de Borja to comment on the
amended account filed by Francisco de Borja.
On July 22, 1952, Francisco, Matilde and Crisanto filed a notice of appeal
from the order appointing Jose de Borja as co-administrator and the order
denying the motion for reconsideration and later they filed the corresponding
record on appeal. By order of December 27, 1952, respondent Judge Tan
disapproved the record on appeal and refused to give due course to the appeal on
the ground that the appointment of Jose de Borja as co-administrator was
interlocutory in nature and so was not appealable. Hence, this petition for
mandamus, as already stated, to compel respondent Judge to approve the record on
appeal and to give due course to the appeal.
An order appointing a regular administrator is appealable (See Sy Hong Eng
vs. Sy Liac Suy, 8 Phil., 594). On the other hand, according to Rule
105, section 1(e) an order appointing a special administrator is not
appealable. Respondents contend that a co-administrator is not a regular or
general administrator, and his duties and functions rather partake those of a
special administrator; consequently, his appointment is not subject to appeal.
We cannot share this view. The powers and functions of a special administrator
are quite limited. Under Rule 81, section 1, a special administrator is
appointed only when there is a delay in granting letters testamentary or of
administration occasioned by an appeal from allowance or disallowance of a will
or from any other cause, and such special administrator is authorized to collect
and take charge of the estate until the questions causing the delay are decided
and an executor or administrator thereon appointed. Under Rule 87, section 8, a
special administrator is also appointed when the regular executor or
administrator has a claim against the estate he represents and said special
administrator shall have the same power and subject to the same liability as a
regular executor or administrator. In other words, a special administrator is
appointed only for a limited time and for a specific purpose. Naturally, because
of the temporary and special character of his appointment, it was deemed by the
law not advisable for any party to appeal from said temporary appointment. On
the other hand, a co-administrator performs all the functions and duties and
exercises all the powers of a regular administrator, only that he is not alone
in the administration. Further taking into consideration the circumstances
obtaining in this case, that petitioner Francisco de Borja though originally
designated administrator, is and has for several years been one only in name due
to his physical and mental disability, as a result of which respondent Jose de
Borja is now practically the sole administrator, there is no question that for
all practical and legal purposes the appointment of Jose de Borja as
co-administrator is equivalent to and has the same effect as a sole regular or
general administrator.
In view of the foregoing, holding that the appointment of a co-administrator,
especially in the present case, is appealable, the petition for mandamus is
granted and respondent Judge is hereby directed to approve the record on appeal
and to give due course to the appeal. No costs.
Paras, C. J., Bengzon, Padilla, Reyes, A., Jugo, Bautista Angelo,
Labrador, Concepcion, and Reyes, J.B. L., JJ., concur.